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DNA testing denied for convicted sex offender

Frank W. Lee still scheduled to be sentenced in December

Editor’s note: The following stories contains mature subject matter.

A Juneau Superior Court judge has denied additional DNA testing for a convicted sex offender awaiting sentencing, saying there is no law entitling defendants to more testing at this stage of legal proceedings.

The attorney for defendant Frank W. Lee asked the judge to order the release of forensic evidence in the state’s possession so that the defense can do more testing before Lee’s sentencing hearing on Dec. 6. If the additional DNA testing was granted, and if the tests came back exculpatory, the attorney signaled he would move for a new trial.

Siding with prosecutors who opposed the motion, Judge Louis Menendez ruled that granting the request would be “contrary to the spirit and intent” of the law and could be “reasonably viewed as an effort to avoid the statute’s stringent and clearly defined requirements.”

Lee, now 61, was accused of performing oral sex on a younger family member and penetrating her with his fingers as she was sleeping over at his apartment for his 60th birthday party last September. He stood trial in September and was convicted of two felony counts of second-degree sexual assault for committing a sex act while the victim was incapacitated. He was acquitted of a more serious felony, first-degree sexual assault.

In a recent motion, Assistant Public Defender Eric Hedland proposed conducting Y-STR testing, or short tandem repeat testing, that can detect the presence of the male Y-chromosome, on the DNA collected from the victim. He argued Lee was entitled to have the DNA tested because prosecutors raised the issue of Y-STR testing at trial, not the defense, as prosecutors attempted to insinuate that the DNA testing that was done (STR testing) was inadequate.

Assistant District Attorney Amy Williams in response said she disagreed with that characterization, and that she raised the issue at trial in order to show that the defense’s expert DNA witness did not have the complete picture when assessing the case, as a way to discredit his testimony. That witness, Dr. David Foran, the director of the forensic science program at Michigan State University, testified Lee’s saliva should have been found on the woman but it wasn’t.

The state’s case at trial largely hinged on incriminating statements police obtained from Lee in a phone call they recorded the day after the assault. Police were able to record the call without Lee’s knowledge with the authorization of a Glass warrant. To combat Lee’s statements, the defense relied on the DNA evidence, which they described as completely exonerating.

It was undisputed that the DNA collected was “good” in that the samples showed a strong DNA profile. The samples were uncompromised and collected within hours of the assault.

Both the state’s and defense’s experts testified that STR testing done at the Alaska State Crime Lab showed the victim only had her DNA on her and Lee only had his DNA on him. The defense argued to the jury that proved Lee’s innocence, while the state argued that DNA testing is imperfect and that the jury should consider the entirety of the case.

Arguing before Judge Menendez last week, ADA Williams said the defense made a “tactical choice” in not requesting the additional Y-STR testing prior to trial out of fear of what the results would show and that Hedland now regrets that decision. There is nothing to stop Lee at this moment from applying for additional DNA testing through the Alaska statute specific to post-conviction relief, Williams added.

Hedland argued in court that wasn’t true — they believed the results would be exculpatory and didn’t request them earlier because it is the state’s burden to prove Lee’s guilt, not the defense’s burden to prove Lee’s innocence. Hedland also noted his office didn’t request the Y-STR testing because their expert witness assured them it wouldn’t be necessary and due to the cost involved.

Hedland said he plans on filing a motion to ask the judge to reconsider.

Lee is looking at serving five to 15 years in prison for each of the counts for which he was convicted.